Case 23-356, Document 59, 09/26/2023, 3573582, Page1 of 35

23-356
IN THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

EUGENE VOLOKH, LOCALS TECHNOLOGY INC.,

and RUMBLE CANADA INC.,
Plaintiffs-Appellees,
v.
LETITIA JAMES, in her official capacity
as Attorney General of New York,
Defendant-Appellant.

On Appeal from the United States District Court

for the Southern District of New York
Hon. Andrew L. Carter, Jr.
Case No. 22-cv-10195 (ALC)

Brief of Amicus Curiae Cato Institute

in Support of Plaintiffs-Appellees and Affirmance

ANASTASIA P. BODEN JOSHUA R. ZUCKERMAN

CATO INSTITUTE BRIAN C. MCCARTY
1000 Mass. Ave., N.W. GIBSON, DUNN & CRUTCHER LLP
Washington, D.C. 20001 1050 Connecticut Ave., N.W.
Telephone: (202) 216-1414 Washington, D.C. 20036
Telephone: (202) 955-8500

Counsel for Amicus Curiae

 Case 23-356, Document 59, 09/26/2023, 3573582, Page2 of 35

RULE 26.1 DISCLOSURE STATEMENT

Amicus Curiae Cato Institute is a nongovernmental, nonprofit

corporation that has no parent companies, subsidiaries, or affiliates. It

does not issue shares to the public, and no publicly held corporation owns

10% or more of its stock.

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TABLE OF CONTENTS

RULE 26.1 DISCLOSURE STATEMENT ................................................. i

TABLE OF CONTENTS ...........................................................................ii
TABLE OF AUTHORITIES .................................................................... iii
INTEREST OF AMICUS .......................................................................... 1
INTRODUCTION ...................................................................................... 2
ARGUMENT ............................................................................................. 4
I. The Online Hate Speech Law Regulates Speech on
Matters of Public Concern ...................................................... 4
II. Statutes That Chill Speech on Matters of Public
Concern Violate the First Amendment................................... 7
III. The Online Hate Speech Law Unconstitutionally Chills
Speech on Matters of Public Concern ................................... 10
A. The Online Hate Speech Law Encourages Self-
Censorship of Protected Speech ................................... 11
B. Chilling Online Speech Is Especially Harmful ........... 14
C. The Vague Terms “Vilify” and “Humiliate”
Exacerbate the Chilling Effect on Political
Discourse ...................................................................... 17
CONCLUSION ........................................................................................ 26
CERTIFICATE OF COMPLIANCE ........................................................ 28

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TABLE OF AUTHORITIES

Page(s)

CASES

303 Creative LLC v. Elenis,

143 S. Ct. 2298 (2023) ........................................................................... 3

Ams. for Prosperity Found. v. Bonta,

141 S. Ct. 2373 (2021) ..................................................................... 8, 10

Ashcroft v. Am. Civil Liberties Union,

535 U.S. 564 (2002) ............................................................................. 20

Brandenburg v. Ohio,
365 U.S. 444 (1969) ............................................................................... 3

City of San Diego v. Roe,

543 U.S. 77 (2004) ................................................................................. 6

Colombo v. O’Connell,
310 F.3d 115 (2d Cir. 2002) .................................................................. 7

Connick v. Myers,
461 U.S. 138 (1983) ............................................................................... 5

Cornelio v. Connecticut,
32 F.4th 160 (2d Cir. 2022) ................................................................. 10

Counterman v. Colorado,
143 S. Ct. 2106 (2023) ......................................................... 9, 10, 15, 20

Cox v. Louisiana,
379 U.S. 536 (1965) ............................................................................... 4

Denver Area Educ. Telecomm. Consortium, Inc. v. FCC,

518 U.S. 727 (1996) ............................................................................. 15

Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,

472 U.S. 749 (1985) ............................................................................... 5

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Grosjean v. Am. Press Co,

297 U.S. 233 (1936) ............................................................................. 26

Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., Inc.,

515 U.S. 557 (1995) ............................................................................... 3

Hustler Magazine v. Falwell,

485 U.S. 46 (1988) ................................................................................. 3

Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31,
138 S. Ct. 2448 (2018) ........................................................................... 6

Jeffries v. Harleston,
21 F.3d 1238 (2d Cir. 1994) .................................................................. 6

Laird v. Tatum,
408 U.S. 1 (1972) ................................................................................... 7

Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n,

138 S. Ct. 1719 (2018) ........................................................................... 2

Matal v. Tam,
582 U.S. 218 (2017) ......................................................................... 3, 22

McDaniel v. Paty,
435 U.S. 618 (1978) ............................................................................. 21

Meyer v. Grant,
486 U.S. 414 (1988) ............................................................................... 5

Mills v. Alabama,
384 U.S. 214 (1966) ............................................................................... 4

NAACP v. Alabama,
357 U.S. 449 (1958) ..................................................................... 7, 8, 13

NAACP v. Button,
371 U.S. 415 (1963) ............................................................................... 3

Nat. Socialist Party of Am. v. Village of Skokie,

432 U.S. 43 (1977) ................................................................................. 3

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New York Times Co. v. Sullivan,

376 U.S. 254 (1964) ..................................................................... 5, 9, 17

Obergefell v. Hodges,
576 U.S. 644 (2015) ............................................................................. 17

Packingham v. North Carolina,

582 U.S. 98 (2017) ......................................................................... 14, 15

Reno v. ACLU,
521 U.S. 844 (1997) ....................................................................... 14, 18

Reuland v. Hynes,
460 F.3d 409 (2d Cir. 2006) .................................................................. 6

Roth v. United States,

354 U.S. 476 (1957) ............................................................................... 4

Seemuller v. Fairfax Cnty. Sch. Bd.,

878 F.2d 1578 (4th Cir. 1989) ............................................................... 6

Snyder v. Phelps,
562 U.S. 443 (2011) ......................................................................... 3, 11

Students for Fair Admissions, Inc. v. President & Fellows

of Harvard Coll.,
143 S. Ct. 2141 (2023) ......................................................................... 24

Texas v. Johnson,
491 U.S. 397 (1989) ............................................................................... 3

Whitney v. California,
274 U.S. 357 (1927) ............................................................................... 4

Zieper v. Metzinger,
474 F.3d 60 (2d Cir. 2007) .................................................................... 7

STATUTES

N.Y. Gen. Bus. Law § 394-ccc(1) ............................................... 2, 6, 11, 13

N.Y. Gen. Bus. Law § 394-ccc(1)(a) ......................................................... 16

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N.Y. Gen. Bus. Law § 394-ccc(2) ......................................................... 2, 16

N.Y. Gen. Bus. Law § 394-ccc(3) ......................................................... 2, 16

Sedition Act of 1798, § 2 .......................................................................... 12

Social Media Hate Speech Accountability Act,

S.7275, 2019-2020 Leg. Sess............................................................... 12

OTHER AUTHORITIES

Andrey Uspenskiy, “Wumben, Wimpund, Woomud” An Exploration of

Social Censure in the Internet Age,
18 The Morningside Review 25 (Sept. 13, 2022) ................................ 25

John Stuart Mill, On Liberty and Other Essays

(John Gray ed. 2008)........................................................................... 11

The Virginia Resolution (Dec. 24, 1798) ................................................... 5

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INTEREST OF AMICUS

The Cato Institute is a nonpartisan public policy research

foundation dedicated to advancing individual liberty and free markets.

Cato is an indefatigable opponent of laws that unconstitutionally abridge

the freedom of speech. Cato is an active participant in political

discussions on the nation’s most important socioeconomic and legal

issues. To that end, Cato maintains a robust social media presence,

publishes scholarly books and studies, conducts conferences, and

produces the annual Cato Supreme Court Review. New York’s Online

Hate Speech Law threatens to chill political discourse on topics on which

Cato regularly publishes, to the detriment of sound policymaking and

public participation in the democratic process. All parties have consented

to the filing of this amicus brief. 1

1
No party or party’s counsel has authored this brief in whole or in part,
or contributed money that was intended to fund preparing or submitting
this brief. No person contributed money that was intended to fund
preparing or submitting this brief.
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INTRODUCTION

“[I]t is not . . . the role of the State or its officials to prescribe what

shall be offensive.” Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights

Comm’n, 138 S. Ct. 1719, 1731 (2018). The State of New York has

nevertheless enacted a statute targeting speech that it finds offensive,

including speech that can “vilify” or “humiliate” “a group or a class of

persons on the basis of race, color, religion, ethnicity, national origin,

disability, sex, sexual orientation, gender identity or gender expression.”

N.Y. Gen. Bus. Law § 394-ccc(1) (“Online Hate Speech Law”). Entitled

“Social media networks; hateful conduct prohibited,” the Online Hate

Speech Law seeks to stifle “hateful” speech by requiring “social media

networks”—broadly defined to encompass any for-profit websites that

allow users to share content—to create a hate-speech policy and a

mechanism for users to report “hateful” speech. Id. § 394-ccc(2)-(3)

(emphasis added).

As the district court correctly held, New York’s efforts to silence

“offensive” ideas with which it disagrees facially violate the First

Amendment. Indeed, the Online Hate Speech Law defies the plain

meaning of the First Amendment and voluminous Supreme Court

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precedent uniformly instructing that so-called “hate speech” is entitled

to full First Amendment protection. 2

The district court correctly

recognized that the Law chills the speech of social media users and

facially violates the First Amendment. Indeed, the Law encourages self-

censorship on the internet—the modern equivalent of the town square—

2
See, e.g., 303 Creative LLC v. Elenis, 143 S. Ct. 2298, 2317 (2023) (First
Amendment “protections belong to all, including to speakers whose
motives others may find misinformed or offensive.”); Matal v. Tam, 582
U.S. 218, 246 (2017) (“Speech that demeans on the basis of race, ethnicity,
gender, religion, age, disability, or any other similar ground is hateful;
but the proudest boast of our free speech jurisprudence is that we protect
the freedom to express the thought that we hate.” (quotation marks
omitted)); Snyder v. Phelps, 562 U.S. 443, 458 (2011) (“[S]peech cannot
be restricted simply because it is upsetting or arouses contempt.”); Hurley
v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., Inc., 515 U.S. 557, 574
(1995) (“[T]he point of all speech protection . . . is to shield just those
choices of content that in someone’s eyes are misguided, or even hurtful.”);
Texas v. Johnson, 491 U.S. 397, 414 (1989) (“If there is a bedrock
principle underlying the First Amendment, it is that the government may
not prohibit the expression of an idea simply because society finds the
idea itself offensive or disagreeable.”); Hustler Magazine v. Falwell, 485
U.S. 46 (1988) (“[T]he public expression of ideas may not be prohibited
merely because the ideas are themselves offensive to some of their
hearers.”); Nat. Socialist Party of Am. v. Village of Skokie, 432 U.S. 43,
44 (1977) (invalidating prior restraints on a Nazi Party march);
Brandenburg v. Ohio, 365 U.S. 444, 447, 449 (1969) (Prosecution of those
espousing racial and religious hatred unconstitutionally “purports to
punish mere advocacy.”); NAACP v. Button, 371 U.S. 415, 445 (1963)
(“The First Amendment is a value-free provision whose protection is not
dependent on the truth, popularity, or social utility of the ideas and
beliefs which are offered.” (quotation marks omitted)).
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by stigmatizing disfavored ideas through the use of vague and ultimately

meaningless regulations on speech that “vilifies” or “humiliates.”

ARGUMENT

I. The Online Hate Speech Law Regulates Speech on Matters

of Public Concern

“Maintenance of the opportunity for free political discussion is a

basic tenet of our constitutional democracy.” Cox v. Louisiana, 379 U.S.

536, 552 (1965). Because the “freedom to think as you will and to speak

as you think are means indispensable to the discovery and spread of

political truth,” the Constitution “eschew[s] silence coerced by law—the

argument of force in its worst form.” Whitney v. California, 274 U.S. 357,

375–76 (1927) (Brandeis, J., concurring).

In recognition of the necessity of robust, unimpeded political

discourse, the First Amendment “was fashioned to assure unfettered

interchange of ideas for the bringing about of political and social changes

desired by the people.” Roth v. United States, 354 U.S. 476, 484 (1957). A

“major purpose” of the First Amendment was “to protect the free

discussion of governmental affairs,” Mills v. Alabama, 384 U.S. 214, 218

(1966), and to enshrine our “profound national commitment to the

principle that debate on public issues should be uninhibited, robust, and

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wide-open,” N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). The

First Amendment protects “that right of freely examining public

characters and measures, and of free communication among the people

thereon, which has ever been justly deemed, the only effectual guardian

of every other right.” The Virginia Resolution (Dec. 24, 1798). 3

“First Amendment protection[]” is accordingly “at its zenith” when

speakers discuss “a matter of societal concern” or “the need for . . .

change.” Meyer v. Grant, 486 U.S. 414, 415, 421 (1988). “[S]peech on

matters of public concern . . . is at the heart of the First Amendment’s

protection.” Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S.

749, 758–59 (1985) (quotation marks omitted). It “occupies the highest

rung of the hierarchy of First Amendment values.” Connick v. Myers, 461

U.S. 138, 145 (1983) (quotation marks omitted).

Speech addresses “a matter of public concern” when it “relat[es] to

any matter of political, social, or other concern to the community.”

Connick, 461 U.S. at 146 (emphasis added). Speech need not be accurate,

sophisticated, or civil to merit the protection accorded to speech

addressing matters of public concern. On the contrary, whether listeners

3
https://tinyurl.com/wrwwkce9.
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are “offended” or view speech as “demeaning” is entirely “irrelevant to

the question whether it deals with a matter of public concern.” Seemuller

v. Fairfax Cnty. Sch. Bd., 878 F.2d 1578, 1583 (4th Cir. 1989); see also

Jeffries v. Harleston, 21 F.3d 1238, 1242, 1245 (2d Cir. 1994) (holding

that “hateful and repugnant” comments about Jews “unquestionably

involved public issues”). It also makes no difference whether the speech

at issue is “hyperbolic” or even “false.” Reuland v. Hynes, 460 F.3d 409,

415 (2d Cir. 2006). All that matters is that the speech addresses “a subject

of general interest and of value and concern to the public.” City of San

Diego v. Roe, 543 U.S. 77, 83–84 (2004).

The Online Hate Speech Law often applies to speech on matters of

public concern. It regulates certain speech addressing “race, color,

religion, ethnicity, national origin, disability, sex, sexual orientation,

gender identity or gender expression.” N.Y. Gen. Bus. Law § 394-ccc(1).

There can be no serious dispute that speech on these issues can be of

public concern. See, e.g., Janus v. Am. Fed’n of State, Cnty., & Mun.

Emps., Council 31, 138 S. Ct. 2448, 2476 (2018) (“[C]ontroversial topics

such as . . . sexual orientation and gender identity . . . and minority

religions . . . [are] sensitive political topics, and they are undoubtedly

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matters of profound value and concern to the public.” (quotation marks

omitted)).

II. Statutes That Chill Speech on Matters of Public Concern

Violate the First Amendment

The First Amendment prohibits not only direct governmental

restrictions on expression but also governmental actions that deter or

chill the exercise of First Amendment rights. “[C]onstitutional violations

may arise from the deterrent, or ‘chilling,’ effect of governmental

regulations that fall short of a direct prohibition against the exercise of

First Amendment rights.” Laird v. Tatum, 408 U.S. 1, 11 (1972); see also

Zieper v. Metzinger, 474 F.3d 60, 65 (2d Cir. 2007) (“It is well-established

that First Amendment rights may be violated by the chilling effect of

governmental action that falls short of a direct prohibition against

speech.” (quotation marks omitted)); Colombo v. O’Connell, 310 F.3d 115,

117 (2d Cir. 2002) (“[T]he First Amendment protects the right to free

speech so far as to prohibit state action that merely has a chilling effect

on speech.”).

The Supreme Court explained why the First Amendment prohibits

statutes that chill protected speech in the landmark case NAACP v.

Alabama, 357 U.S. 449 (1958). The Court held that Alabama’s efforts to
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compel the NAACP to disclose its membership lists “exposed these

members to economic reprisal, loss of employment, threat of physical

coercion, and other manifestations of public hostility,” thereby chilling

the ability of the NAACP and its members “to pursue their collective

effort to foster beliefs which they admittedly have the right to advocate.”

Id. at 462–63. It made no difference that the chilling effect “follow[ed] not

from state action but from private community pressures” because “it is

only after the initial exertion of state power represented by the

production order that private action takes hold.” Id. at 463.

In the decades since it decided NAACP, the Supreme Court has

repeatedly made clear that “the protections of the First Amendment are

triggered not only by actual restriction” on expression. Ams. for

Prosperity Found. v. Bonta, 141 S. Ct. 2373, 2389 (2021). “The risk of a

chilling effect . . . is enough, [b]ecause First Amendment freedoms need

breathing space to survive.” Id. (quotation marks omitted). For example,

even though libelous and defamatory statements are not protected by the

First Amendment, states cannot restrict a false statement about a public

figure unless the speaker made the statement “with ‘actual malice’—that

is, with knowledge that it was false or with reckless disregard of whether

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it was false or not.” N.Y. Times, 376 U.S. at 280. Absent this mens rea

requirement, “would-be critics of official conduct may be deterred from

voicing their criticism, even though it is believed to be true and even

though it is in fact true, because of doubt whether it can be proved in

court or fear of the expense of having to do so.” Id. at 279.

Just last term, the Supreme Court explained how “[p]rohibitions on

speech have the potential to chill, or deter, speech outside their

boundaries.” Counterman v. Colorado, 143 S. Ct. 2106, 2114 (2023). “A

speaker may be unsure about the side of a line on which his speech falls.

Or he may worry that the legal system will err, and count speech that is

permissible as instead not. Or he may simply be concerned about the

expense of becoming entangled in the legal system.” Id. at 2114–15.

Whatever the would-be speaker’s precise reasons, “[t]he result is ‘self-

censorship’ of speech that could not be proscribed—a ‘cautious and

restrictive exercise’ of First Amendment freedoms.” Id. at 2115. To reduce

the chilling effects that might lead a person “to swallow words that are

in fact not true threats,” the Court therefore held that states cannot

restrict constitutionally unprotected threats of violence without showing

that the speaker recklessly disregarded a risk that others would perceive

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his words as threatening. Id. at 2116–17. In sum, the “protections of the

First Amendment are triggered” by any state action that creates a “risk

of a chilling effect” on protected expression. AFP, 141 S. Ct. at 2389.

These principles apply with full force to laws that discourage

protected expression. Last year, this Court resuscitated a First

Amendment challenge to a Connecticut law that requires a registered sex

offender to notify the state “when he creates a new email address, instant

messenger address, or other internet communication identifier.” Cornelio

v. Connecticut, 32 F.4th 160, 166, 180 (2d Cir. 2022). The Court explained

that the law “burdens a registrant’s ‘ability and willingness to speak on

the Internet’” and “plausibly deters registrants from engaging in

protected online speech.” Id. at 169. Because the law “risks chilling online

speech” and was not narrowly tailored to the asserted state interests, it

violated the First Amendment. Id. at 170.

III. The Online Hate Speech Law Unconstitutionally Chills

Speech on Matters of Public Concern

If allowed to go into effect, the Online Hate Speech Law would chill

protected speech on matters of public concern. The Law requires

networks to prominently display a hateful-conduct policy and a

mechanism for reporting “hateful speech” to the network. It would

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discourage users from engaging in protected expression, because users

would reasonably fear that the network would publicly condemn their

speech as hateful or suspend or ban them from the platform. This chilling

effect would be exacerbated by the Law’s vague terms “vilify” or

“humiliate.” These terms create a “highly malleable standard with ‘an

inherent subjectiveness.’” Snyder v. Phelps, 562 U.S. 443, 458 (2011). In

today’s hyperpolarized and hyperpartisan political climate, opponents of

speech that mentions “race, color, religion, ethnicity, national origin,

disability, sex, sexual orientation, gender identity or gender expression”

often denounce the speech as vilifying or humiliating—fairly or not. N.Y.

Gen. Bus. Law § 394-ccc(1). Speech on these issues lies at the forefront of

political discourse, which would suffer greatly if the Law goes into effect.

A. The Online Hate Speech Law Encourages Self-

Censorship of Protected Speech

Although the Online Hate Speech Law does not directly punish the

utterance of disfavored ideas, its “chief mischief” is that it imposes a

“social stigma” on expressing ideas that the State does not like. John

Stuart Mill, On Liberty and Other Essays 37 (John Gray ed. 2008). This

stigma “roots out no opinions, but induces men to disguise them, or to

abstain from any active effort for their diffusion.” Id.

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The whole point of the Law is to stigmatize protected speech. In fact,

some legislators previously tried to go a step further. The Law’s sponsor

previously introduced the Social Media Hate Speech Accountability Act,

S.7275, 2019-2020 Leg. Sess., which would have required internet service

providers to remove “hate speech”—speech that “intentionally makes an

insulting statement about a group of persons because of race, ethnicity,

nationality, religion or beliefs, sexual orientation, gender identity or

physical, mental or intellectual disability”—or face up to a $1 million fine

per violation. The bill never received a floor vote, no doubt because most

legislators had the good sense to realize that the First Amendment does

not allow the government to fine those who do not purge the public square

of protected expression that New York finds “insulting.” Compare S.7275,

with Sedition Act of 1798, § 2 4 (criminalizing certain “scandalous and

malicious” speech). But Albany’s would-be censors did not give up.

Knowing that they could not directly silence disfavored speech, the

Legislature instead sought to chill it.

The Online Hate Speech Law forces social media networks to

promulgate policies governing so-called “hateful conduct” and create

4
https://tinyurl.com/yf6pm8nw.
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“mechanisms” by which users can report such conduct. This would

plainly chill social media users from engaging in protected expression.

After reading a network’s “mechanism” for reporting “hateful conduct,”

which must be “clearly” and “easily accessible,” or the platform’s hateful-

conduct policy, which must be “readily available and accessible,” N.Y.

Gen. Bus. Law § 394-ccc(2)–(3), many users would refrain from speech

that might fall within the amorphous, protean definition of “hateful

conduct.” These users may fear that others will use the State-mandated

mechanism to report their expression as “hateful conduct,” which, in

turn, could result in the network publicly condemning the speech as

hateful, vilifying, or humiliating, a suspension or a ban from using the

network, or the wrath of the authorities.

It is irrelevant that this “repressive effect” follows directly “from

private community pressures,” specifically, other users’ complaints about

protected speech using the State-mandated reporting mechanism or the

platform’s decision to suspend or ban a user. NAACP, 357 U.S. at 463.

“The crucial factor is the interplay of governmental and private action.”

Id. In the absence of the Online Hate Speech Law, many networks,

including Plaintiff-Appellees’, would not adopt “hate speech” policies.

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This would eliminate users’ fears that their speech could result in

suspension or removal from the network.

B. Chilling Online Speech Is Especially Harmful

Governmental actions that chill speech on the internet are

particularly concerning because “the most important place[] . . . for the

exchange of views . . . is cyberspace—the ‘vast democratic forums of the

Internet’ in general, and social media in particular.” Packingham v.

North Carolina, 582 U.S. 98, 104 (2017) (citation omitted) (quoting Reno

v. ACLU, 521 U.S. 844, 870 (1997)). “Social media offers ‘relatively

unlimited, low-cost capacity for communication of all kinds,’” and “social

media users employ these websites to engage in a wide array of protected

First Amendment activity on topics ‘as diverse as human thought.’” Id.

at 104–05 (quoting Reno, 521 U.S. at 870). Social media websites “for

many are the principal sources for knowing current events, checking ads

for employment, speaking and listening in the modern public square, and

otherwise exploring the vast realms of human thought and knowledge.”

Id. at 107. “These websites can provide perhaps the most powerful

mechanisms available to a private citizen to make his or her voice heard.

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They allow a person with an Internet connection to ‘become a town crier

with a voice that resonates farther than it could from any soapbox.’” Id.

Citizens previously expressed and discussed ideas in town squares,

streets, parks, and in the columns of printed newspapers and pamphlets.

Now, however, many of the most important ideas and debates largely

occur on social media networks (such as Facebook and X, formerly known

as Twitter) and on blogs (such as the Volokh Conspiracy). “Minds are not

changed in streets and parks as they once were. To an increasing degree,

the more significant interchanges of ideas and shaping of public

consciousness occur in mass and electronic media.” Denver Area Educ.

Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727, 802–03 (1996)

(Kennedy, J., concurring in part, concurring in the judgment in part, and

dissenting in part); see also Counterman, 143 S. Ct. at 2122 (Sotomayor,

J., concurring in part and concurring in the judgment) (noting that “[o]ur

society’s discourse occurs more and more” on the internet and social

media).

Yet New York’s Online Hate Speech Law would discourage the

“exercise of First Amendment rights on websites integral to the fabric of

our modern society and culture.” Packingham, 582 U.S. at 109. The law’s

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sweeping definition of “social media network” includes not only

quintessential social media networks, such as Facebook or Twitter, but

any online forums on which users can share information or ideas with

other users or the public. It applies to any websites with comment

sections, such as most blogs and news websites. The Law also appears to

cover websites like SSRN, which is “an open access research platform

used to share early-stage research, evolve ideas, measure results, and

connect scholars around the world.” Elsevier, What Is SSRN?,

https://tinyurl.com/yd54549k/.

Many of these websites are far afield from what would generally be

considered “social media,” yet New York’s Online Hate Speech Law would

stifle the free exchange of ideas on all these platforms by requiring the

platforms to prominently display a hateful-conduct policy and “a clear

and easily accessible mechanism” for reporting “incidents of hateful

conduct.” N.Y. Gen. Bus. Law § 394-ccc(2)–(3). As noted above, see supra

Part III.A, these State-mandated displays would discourage persons from

communicating messages that could be perceived to “vilify, humiliate, or

incite violence” against a protected class. N.Y. Gen. Bus. Law § 394-

ccc(1)(a). Writers, bloggers, independent journalists, scholars, and

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ordinary citizens would refrain from discussing many of the most

controversial and important issues facing our democracy to avoid being

reported for engaging in “hateful conduct.”

That result is flatly inconsistent with our “profound national

commitment to the principle that debate on public issues should be

uninhibited, robust, and wide-open.” N.Y. Times, 376 U.S. at 270. New

York’s attempt to enlist social media networks in its campaign to

discourage protected speech that it finds offensive is a clear violation of

these foundational constitutional commitments.

C. The Vague Terms “Vilify” and “Humiliate” Exacerbate

the Chilling Effect on Political Discourse

“American democracy [is] at its best” when those “on both sides” of

controversial issues “passionately, but respectfully, attempt[] to

persuade their fellow citizens to accept their views.” Obergefell v. Hodges,

576 U.S. 644, 714 (2015) (Scalia, J., dissenting). Unfortunately, those who

advance serious and respectful arguments on the most important public-

policy issues of the day are all-too-often demonized for uttering “hate

speech” or for “vilifying” or “humiliating” members of a protected class.

New York cannot seriously dispute that the Online Hate Speech

Law will chill potentially “vilifying” or “humiliating” speech. That’s the

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 Case 23-356, Document 59, 09/26/2023, 3573582, Page25 of 35

entire point of the Law. Perhaps that is why the Legislature did not

bother defining “vilify” or “humiliate.” The risk of a chilling effect is

especially high when a law is vague, because speakers will have difficulty

determining whether their speech falls on the permissible or

impermissible side of the unclear line that the statute draws. See Reno,

521 U.S. at 871–72 (“The vagueness of . . . a regulation raises special First

Amendment concerns because of its obvious chilling effect on free

speech.”). Indeed, the Online Hate Speech Law’s vague definition of

“hateful conduct” “exacerbate[s]” self-censorship because “[i]t is not clear

what the terms like ‘vilify’ and ‘humiliate’ mean.” S.A.18.

Suppose an ordinary citizen is considering posting on a social media

network about issues pertaining to a protected class. He has read the

Law and the network’s legally compelled hate-speech policies and knows

that he risks punishment or censure if he says something that is

“vilifying” or “humiliating.” But he also doesn’t know what these words

mean because the Law does not bother defining them.

So he takes the logical step of looking these words up in the

dictionary. He learns that “vilify” means “to say or write unpleasant

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 Case 23-356, Document 59, 09/26/2023, 3573582, Page26 of 35

things about someone or something.” Vilify, Cambridge Dictionary. 5 That

doesn’t really help, so he looks up “unpleasant,” which means “rude and

angry.” Unpleasant, Cambridge Dictionary. 6

Then he looks up

“humiliate,” which means “to make someone feel ashamed or lose respect

for himself or herself.” Humiliate, Cambridge Dictionary. 7 He realizes

there is no objective standard by which his speech can be assessed; even

flattery might be perceived as “humiliating.” See, e.g., Babylon Bee, Asian

Americans Celebrate Affirmative Action Ruling With 5-Minute Study

Break (June 30, 2023). 8

The user would probably next attempt to determine who decides

whether speech is “vilifying” or “humiliating.” Again, the Law has no

answers. Do anonymous and unaccountable social-network moderators

have the unilateral authority to decide whether speech is “vilifying” or

“humiliating?” What if the moderators find the speech acceptable but just

one listener is offended? Regardless, the Law has an unconstitutional

chilling effect if its application depends on how the community might

5
https://tinyurl.com/bdexbse5.
6
https://tinyurl.com/4r9fau8s.
7
https://tinyurl.com/4mcs8zxe.
8
https://tinyurl.com/ymzsavt6.
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 Case 23-356, Document 59, 09/26/2023, 3573582, Page27 of 35

react to protected speech. “An objective standard, turning only on how

reasonable observers would construe a statement . . . would discourage

the uninhibited, robust, and wide-open debate that the First Amendment

is intended to protect.” Counterman, 143 S. Ct. at 2116 (quotation marks

omitted). It “provide[s] the most puritan of communities with a heckler’s

Internet veto.” Ashcroft v. Am. Civil Liberties Union, 535 U.S. 564, 590

(2002) (Breyer, J., concurring); see, e.g, BBC, 1989: Ayatollah Sentences

Author to Death (Feb. 14, 1989) 9 (“[T]he author of The Satanic Verses

book, which is against Islam, the Prophet and the Koran, and all those

involved in its publication who are aware of its content are sentenced to

death.”).

The user is now very worried. He considers posting something

seemingly noncontroversial—a condemnation of Russian war crimes in

Ukraine. But then he realizes that the Russian embassy might report

him for “vilifying” racist speech. TASS Russian News Agency, “Nothing

but racism”: Putin hits out at Russophobia spreading around the world

(Sept. 30, 2022) 10 (“‘Present-day global Russophobia can be nothing but a

9
https://tinyurl.com/2xdr5jrz.
10
https://tinyurl.com/544bfzb6.
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 Case 23-356, Document 59, 09/26/2023, 3573582, Page28 of 35

manifestation of racism,’ Putin said.”). Indeed, the world’s most evil

regimes have long used allegations of racism, sexism, and other forms of

bigotry as a means of silencing their critics. See, e.g., Ministry of Foreign

Affairs of the People’s Republic of China, Foreign Ministry Spokesperson

Zhao Lijian’s Regular Press Conference (April 13, 2022) 11 (“The US

government . . . instigates the ‘lab leak’ theory and allows racism to

spawn alongside the coronavirus.”). The Online Hate Speech Law gives

these censors another tool in their arsenal.

The user is almost ready to give up and not speak at all, but then

he realizes he has one last option—religious speech. Surely that must be

safe—a conscientious legislature would create a religious exemption in

light of the Free Exercise Clause. But the Online Hate Speech Law

inflicts a First Amendment one-two punch when it is applied to religious

speech that supposedly “vilifies” or “humiliates” on the basis of a

protected class, like the retweeting of a Bible verse that condemns

nonbelievers or promotes traditional gender roles. Contra McDaniel v.

Paty, 435 U.S. 618, 641 (1978) (Brennan, J., concurring in the judgment)

11
https://tinyurl.com/edbrt2jd.
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 Case 23-356, Document 59, 09/26/2023, 3573582, Page29 of 35

(“The State’s goal of preventing sectarian bickering and strife may not be

accomplished by regulating religious speech.”).

The social media user decides to remain silent and refrain from

sharing his political views, which is exactly what New York wants. He

grumbles that his friend can make posts supporting feminism or racial

equality with impunity. But his friend fares no better. A law “directed

against speech found offensive to some portion of the public can be turned

against minority and dissenting views to the detriment of all.” Matal v.

Tam, 582 U.S. 218, 253–54 (2017) (Kennedy, J., concurring in part and

concurring in the judgment). Even speech that condemns hatred against

protected classes is not safe from the Law’s sweeping ambit.

For example, some have attempted to ban To Kill a Mockingbird on

the ground that it causes readers “to feel humiliated or marginalized by

the use of racial slurs.” Katie Reilly, A School District Has Dropped

Mockingbird and Huckleberry Finn from Reading Lists Over Racial Slurs,

Time (Feb. 7, 2018). 12 A Texas legislator has compiled a list of over 800

books that “might make students feel discomfort, guilt, anguish, or any

other form of psychological distress because of their race or sex.” Emma

12
https://tinyurl.com/2ytm6s5z/.
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 Case 23-356, Document 59, 09/26/2023, 3573582, Page30 of 35

Sarappo, Read the Books that Schools Want to Ban, The Atlantic (Feb. 1,

2022). 13 The list includes Ta-Nehisi Coates’s Between the World and Me,

a “frank assessment of the effect of centuries of racial violence on

contemporary Black Americans”; Margaret Atwood’s acclaimed feminist

novel, The Handmaid’s Tale; and dozens of books about racism, gender

identity, and abortion. Id. And others have objected to August Wilson’s

Pulitzer Prize- and Tony Award-winning play Fences on the grounds that

it “foster[s] stereotypes about Black families,” that it “destroy[s] the

confidence and self-esteem of . . . the Black population,” and that its use

of a racial slur is a “‘dagger’ . . . ‘cutting deeper and deeper’ with each

mention.” Marie Fazio, A Black Student’s Mother Complained About

‘Fences.’ He Was Expelled., N.Y. Times (Dec. 15, 2020). 14

The saga of the social media user and his friend illustrates one of

the paramount dangers of the Online Hate Speech Law: it stifles political

speech on both sides of important political debates. Suppose, for example:

• A woman who opposes affirmative action writes a short post

discussing how affirmative action undermines meritocracy. A man is

13
https://tinyurl.com/mr35uzv9; full list available at
https://tinyurl.com/2ujyky3j.
14
https://tinyurl.com/yc55rsww.
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 Case 23-356, Document 59, 09/26/2023, 3573582, Page31 of 35

offended. He replies to her post by praising affirmative action, and he

reports her for making “humiliating” racist speech. See University of

California Santa Cruz, Tool: Recognizing Microaggressions and the

Messages They Send 15 (“I believe the most qualified person should get

the job” is a racist “microaggression”). The woman then reports the

man’s defense of affirmative action as “vilifying” on the basis of race.

See Students for Fair Admissions, Inc. v. President & Fellows of

Harvard Coll., 143 S. Ct. 2141, 2202 (2023) (Thomas, J., concurring)

(describing affirmative action as “naked racism”). A hopelessly

confused moderator decides to delete the entire thread, stifling an

important policy debate.

• A transgender-rights group shares an opinion piece arguing that sex

is not biological. Some feminists accuse the group of “humiliating”

women on the basis of sex. See J.K. Rowling, J.K. Rowling Writes about

Her Reasons for Speaking out on Sex and Gender Issues (June 10,

2020) 16 (“Moreover, the ‘inclusive’ language that calls female people

‘menstruators’ and ‘people with vulvas’ strikes many women as

15
https://tinyurl.com/4xz9me3f.
16
https://tinyurl.com/3bnzjb4y.
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 Case 23-356, Document 59, 09/26/2023, 3573582, Page32 of 35

dehumanising and demeaning.”). The transgender-rights group

retorts that the feminists are “humiliat[ing]” the group on the basis of

gender identity or gender expression. See Andrey Uspenskiy,

“Wumben, Wimpund, Woomud” An Exploration of Social Censure in

the Internet Age, 18 The Morningside Review 25, 28 (Sept. 13, 2022) 17

(accusing J.K. Rowling of “degrad[ing]” and “dehumaniz[ing]”

transgender people). Following a highly publicized debate, the social

media network decides not to remove the posts, but future users are

afraid to discuss transgenderism, lest their posts become a media

spectacle.

• A Zionist makes a pro-Israel post and is immediately accused of

“vilifying” Muslims. See Jewish Voice for Peace, FAQs on U.S.

Islamophobia & Israel Politics, 18 (claiming that support of Israel is the

result of “Islamophobia”). A supporter of Palestinian independence

makes an anti-Israel post and is immediately accused of “vilifying”

Jews. See Anti-Defamation League, The Boycott, Divestment and

Sanctions Campaign (BDS) (May 24, 2022) 19 (claiming that boycotts

17
https://tinyurl.com/2bb3m46d.
18
https://tinyurl.com/43z9t2as.
19
https://tinyurl.com/yw9kc6wy.
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 Case 23-356, Document 59, 09/26/2023, 3573582, Page33 of 35

of Israel are “antisemitic”). The weary social media network,

inundated with reports, adopts a new policy that no one can discuss

Middle Eastern politics.

Faced with all these potential pitfalls, a social media user may well

decide that he should simply not talk about many important issues of

public concern. Unless of course, he’s parroting milquetoast and

completely uncontroversial talking points. Those are safe to say—at least

in theory. And that’s precisely the point of the Online Hate Speech Law:

to eliminate potentially offensive public discourse. It is “a deliberate and

calculated device . . . to limit the circulation of information to which the

public is entitled in virtue of the constitutional guaranties.” Grosjean v.

Am. Press Co, 297 U.S. 233, 250 (1936).

CONCLUSION

This Court should affirm the decision of the district court

preliminarily enjoining New York’s Online Hate Speech Law.

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 Case 23-356, Document 59, 09/26/2023, 3573582, Page34 of 35

Dated: September 26, 2023 Respectfully submitted,

/s/ Joshua R. Zuckerman

ANASTASIA P. BODEN JOSHUA R. ZUCKERMAN
CATO INSTITUTE BRIAN C. MCCARTY
1000 Mass. Ave., N.W. GIBSON, DUNN & CRUTCHER LLP
Washington, D.C. 20001 1050 Connecticut Ave., N.W.
(202) 216-1414 Washington, D.C. 20036
aboden@cato.org (202) 955-8500
jzuckerman@gibsondunn.com

Counsel for Amicus Curiae

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 Case 23-356, Document 59, 09/26/2023, 3573582, Page35 of 35

CERTIFICATE OF COMPLIANCE

1. This document complies with the type-volume limit of Local Rules

29.1(c) and 32.1(a)(4)(A) because, excluding the parts of the document
exempted by Fed. R. App. P. 32(f), this document contains 5,141 words.

2. This document complies with the typeface requirements of Fed. R. App.

P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6)
because this document has been prepared in a proportionally spaced
typeface using Microsoft Word 2016 in 14-point New Century
Schoolbook font.

Dated: September 26, 2023 By: /s/ Joshua R. Zuckerman

Joshua R. Zuckerman

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